216 A.D. 730 | N.Y. App. Div. | 1926
Lead Opinion
Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion to vacate notice of examination denied. The subjects upon which the examination is sought, as set forth in subdivisions “ 2,” “ 3 ” and “ 4 ” of the notice of examination, in our opinion, are material and necessary for the proper prosecution of plaintiff’s action, and should, therefore, be allowed. Subdivision “ 1 ” of the notice of examination, having reference to matters of proof the burden of which is upon defendant, in a case of this kind, should be stricken out. The motorman
Dissenting Opinion
dissents and votes to affirm upon the authority of Friedman v. N. Y. Central R. R. Co. (206 App. Div. 169); Kelly, P. J., concurs with Kapper, J., being also of opinion that the order was within the discretion of the justice at Special Term, with which this court should not interfere. (Middleton v. Boardman, 240 N. Y. 552.) Settle order on notice. "